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Arrogation. Manus.

35

dare. (106.) Set illa quaestio est, an minor natu maiorem natu adoptare possit: idque utriusque adoptionis commune est.

107. Illud proprium est eius adoptionis quae per populum fit, quod is qui liberos in potestate habet, si se adrogandum dederit, non solum ipse potestati adrogatoris subicitur, set etiam liberi eius in eiusdem fiunt potestate tanquam nepotes.

108. Nunc de his personis videamus quae in manu nostra sunt. quod et ipsum ius proprium civium Romanorum est. (109.) Sed in potestate quidem et masculi et feminae esse solent: in manum autem feminae tantum conveniunt. (110.) Olim itaque tribus modis in manum conveniebant, usu, farreo, coemptione. (111.) Usu in manum conveniebat quae anno continuo nupta perseverabat; quae enim velut annua possessione usu

in adoption to another.

106. But it is a moot point whether a younger man can adopt an elder, and the doubt is common to both kinds of adoption'.

107. There is this one peculiarity attaching to the kind of adoption effected by authority of the populus, that if one who has children in his potestas give himself to be arrogated, not only is he himself subjected to the potestas of the arrogator, but his children also come into the potestas of the same man in the capacity of grandchildren3.

108. Now let us consider about those persons who are in our manus. This also is a right peculiar to Roman citizens. 109. But whereas both males and females may be in our potestas, females alone come into manus. 110. Formerly they came into manus in three ways, by usus, farreum or coemptio. III. A woman who remained married for an unbroken year came into manus by usus: for she who was acquired, as it were, by usucapio through the possession of a year, passed into the

1 Justinian settled that the adoptor must be older than the adopted by 18 years (“plenâ pubertate”). Inst.1.1 1.4.

2 Ulpian, VIII. 8. The emperor Justinian remodelled the whole law of adoption, enacting that the actual father should lose none of his rights, and be exempted from none of his duties in respect of the child given in adoption. The only exception was in the case when the

adoptor was an ascendant of the adopted. In the latter case, styled adoptio plena, the old law remained in force. In the other kind (minus plena) the adopted child had no claims on the adoptor, except that of succeeding to him in case of his intestacy, and the adoptor had no claims whatever on the adopted.

For an explanation of usucabio, see 11. 42 et seqq.

capiebatur, in familiam viri transibat filiaeque locum optinebat. itaque lege duodecim tabularum cautum erat, si qua nollet eo modo in manum mariti convenire, ut quotannis trinoctio abesset atque ita usum cuiusque anni interrumperet. set hoc totum ius partim legibus sublatum est, partim ipsa desuetudine oblitteratum est. (112.) Farreo in manum conveniunt per quoddam genus sacrificii in quo farreus panis adhibetur :

unde etiam confarreatio dicitur. sed conplura praeterea huius iuris ordinandi gratia cum certis et sollemnibus verbis, praesentibus decem testibus aguntur et fiunt. quod ius etiam nostris temporibus in usu est: nam flamines maiores, id est Diales, Martiales, Quirinales, sicut reges sacrorum, nisi sint confarreatis nuptiis nati, inaugurari non videmus confarreatio

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(113) Coemptione in manum conveniunt

family of her husband, and gained the position of a daughter. Therefore it was provided by a law of the Twelve Tables', that if any woman was unwilling to come under her husband's manus in this way, she should every year absent herself for the space of three (successive) nights, and so break the usus of each year. But all these regulations have been in part removed by enactments, in part abolished by mere disuse. 112. Women come into manus by farreum through a particular kind of sacrifice......in which a cake of fine flour (far) is employed: whence also the proceeding is called confarreatio: but besides this there are many other ceremonies performed and done for the purpose of ratifying the ordinance, with certain solemn words used, and with ten witnesses present. This rite is in use even in our times, for we see that the superior flamens, i. e. the Diales, Martiales and Quirinales, as being supreme in sacred matters, are not admitted to office, unless they are born from a marriage by confarreatio3...... 113. Women come into manus by coemptio by means of a mancipatio1, i. e. by

1 Tab. VI. 1. 4.

2 Ulpian, IX. Servius thus describes a part of the ceremony used in the marriage of a Flamen and Flaminica. "Two seats were joined together and covered with the skin of a sheep that had been sacrificed; then the couple were introduced en

veloped in a veil, and made to take
their seats there, and the woman, to
use Dido's words, was said to be
locata to her husband." See Servius
on Aen. IV. 104, 357.

3 Tacit. Ann. IV. 16.
4 I. 119.

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per mancipationem, id est per quandam imaginariam venditionem, adhibitis non minus quam v testibus, civibus Romanis puberibus, item libripende, asse is sibi emit mulierem, cuius in manum convenit. (114.) Potest autem coemptionem facere mulier non solum cum marito suo, sed etiam cum extraneo : unde aut matrimonii causa facta coemptio dicitur, aut fiduciae causa. quae enim cum marito suo facit coemptionem, ut aput eum filiae loco sit, dicitur matrimonii causa fecisse coemptionem: quae vero alterius rei causa facit coemptionem cum viro suo aut cum extraneo, velut tutelae evitandae causa, dicitur fiduciae causa fecisse coemptionem. (115.) Quod est tale: si qua velit quos habet tutores reponere, ut alium nansciscatur, iis auctoribus coemptionem facit; deinde a coemptionatore rea kind of imaginary sale, in the presence of not less than five witnesses, Roman citizens of the age of puberty, as well as a libripens', (wherein) he into whose manus the woman is coming buys her for himself with an as. 114. But a woman can make a coemptio not only with her husband, but also with a stranger: whence a coemptio is said to be made either with intent of matrimony or with fiduciary intent. For she who makes a coemptio with her husband, to be to him in the place of a daughter, is said to make coemptio with the intent of matrimony: but she who makes a coemptio with her husband or a stranger for any other purpose, for instance to get rid of her guardian, is said to have made coemptio with fiduciary intent. 115. This is effected as follows: if a woman wish to get rid of the guardians she has, in order to obtain another, she makes a coemptio with their authorization: then being retransferred through mancipatio by the coemptionator to such person as she

11. 119.

2 Guardianship (tutela) is treated of in I. 142-200, without a knowledge of which it is difficult to understand this paragraph. The law, as we know, allowed the woman to do no act without the sanction of her guardians, so that even her repudiation of them required authorization on their part: although if they were unfit for their office, and yet vexatiously refused to allow a transfer, the Praetor would, as in other cases where they refused to carry

out the woman's wishes. interfere and compel them (1. 190). The guardian, then, sells the woman to the coemptionator by mancipatio. The coemptionator has her in his manus, and by a second mancipatio he transfers her into the mancipium of the person she desires to have as guardian (1. 123). From the mancipium she is freed by emancipation, and so, by mere operation of law (1. 166) at once has the manumittor as her "tutor fiduciarius."

mancipata ei cui ipsa velit, et ab eo vindicta manumissa, incipit eum habere tutorem, a quo manumissa est: qui tutor fiduciarius dicitur, sicut inferius apparebit. (115 a.) Olim etiam testamenti faciendi gratia fiduciaria fiebat coemptio. tunc enim non aliter feminae testamenti faciendi ius habebant, exceptis quibusdam personis, quam si coemptionem fecissent remancipataeque et manumissae fuisset. set hanc necessitatem coemptionis faciendae ex auctoritate divi Hadriani senatus remisit. femina (115 b.) Licet autem mulier fiduciae causa cum viro suo fecerit coemptionem, nihilominus filiae loco incipit esse: nam si omnino qualibet ex causa uxor in manu viri sit, placuit eam iura filiae nancisci.

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116. Superest ut exponamus quae personae in mancipio sint. (117.) Omnes igitur liberorum personae, sive masculini sive

pleases, and by him manumitted by vindicta, she thenceforth has for guardian him by whom she was manumitted; and he is called a fiduciary tutor, as will appear below. 115 a. In ancient times a fiduciary coemptio took place also for the purpose of making a testament'. For then women had no right of making a testament (certain persons excepted), unless they had made a coemptio, been retransferred by mancipatio3, and manumitted. But the senate, at the instance of the late emperor Hadrian, abolished this necessity of making a coemptio...... 115 b. But even if it be for fiduciary purpose that a woman has made a coemptio with her husband, she is nevertheless at once in the place of a daughter to him: for if in any case and for any reason a woman be in the manus of her husband, it is held that she obtains the rights of a daughter3.

116. It now remains for us to explain what persons are in mancipium. 117. All descendants, then, whether male or

1 In ancient times the agnati were heirs-at-law to a woman, and their succession could not be directly set aside. The method adopted was to break the agnatic bond by removing the woman from her family by the process described in the text. She then stood alone in the world: "caput et finis familiae," and having no agnati to prefer a claim against her, could freely dispose of her pro

perty.

C. 12.

III. 9-14. Cic. pro Mur.

2 Remancipata is the technical word for a woman mancipated out of manus. "Remancipatam Gallus Aelius ait quae remancipata sit ab eo cui in manum convenerit." Festus sub verb.

3 On this subject generally see Mommsen's History of Rome (Dickson's translation), Vol. 1. p. 60.

Coemptionators. Mancipatio.

39

feminini sexus, quae in potestate parentis sunt, mancipari ab hoc eodem modo possunt, quo etiam servi mancipari possunt. (118.) Idem iuris est in earum personis quae in manu sunt. nam feminae a coemptionatoribus eodem modo possunt mancipari quo liberi a parente mancipantur; adeo quidem, ut quamvis ea sola aput coemptionatorem filiae loco sit quae ei nupta sit, tamen nihilo minus etiam quae ei nupta non sit, nec ob id filiae loco sit, ab eo mancipari possit. (118 a.) Plerumque solum et a parentibus et a coemptionatoribus mancipantur, cum velint parentes coemptionatoresque e suo iure eas personas dimittere, sicut inferius evidentius apparebit. (119.) Est autem mancipatio, ut supra quoque diximus, imaginaria quaedam venditio: quod et ipsum ius proprium civium Romanorum est. eaque res ita agitur. adhibitis non minus quam quinque testibus civibus Romanis puberibus, et praeterea alio eiusdem condicionis qui libram aeneam teneat, qui appellatur libripens, is qui mancipio accipit rem, aes tenens ita dicit: HUNC EGO

female, who are in the potestas of an ascendant, may be mancipated by him in the same manner in which slaves also can be mancipated. 118. The same rule applies to persons who are in manus. For women may be mancipated by their coemptionators in the same manner in which descendants are mancipated by an ascendant: and so universally does this hold, that although that woman alone who is married to her coemptionator stands in the place of a daughter to him, yet one also who is not married to him and so does not stand in the place of a daughter to him, can nevertheless be mancipated by him. 118 a. But generally persons are mancipated, whether by ascendants or coemptionators, only when the ascendants or coemptionators wish to dismiss them from their power, as will be seen more clearly below'. 119. Now mancipatio, as we have said above, is a kind of imaginary sale: and this legal form too is one peculiar to Roman citizens. It is conducted thus: not less than five witnesses being present, Roman citizens of the age of puberty, and another man besides of like condition who holds a copper balance, and is called a libripens, he who receives the thing in mancipium takes a coin in his hand and says as follows: "I assert this man to be mine ex jure

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